A knitwear designer has been awarded more than £96,000 after a tribunal ruled she was unfairly dismissed and discriminated against on the grounds of age.
The Bristol employment tribunal heard that Ms Rachel Sunderland had been repeatedly passed over for promotion in favour of younger colleagues, and was forced to resign after becoming ill with stress.
Sunderland worked for clothing brand Superdry as a knitwear design specialist from September 2015 until her employment ended in September 2020. She had previously worked in the fashion industry for more than 30 years, and has a degree in knitwear design.
Upon joining the company, Sunderland understood there was no hierarchy among the design department, but in 2017, a hierarchical system was introduced within the men’s department, where she worked, and two designers were promoted to senior designer.
After raising this issue with her manager, Dan Hanvey, during an appraisal meeting, she was told that certain responsibilities had to be undertaken before promotion, such as managing a member of staff. They both agreed that this was something she could work on.
During this review, Sunderland rated her potential as ‘mastery’ – the lowest of three ratings of ‘mastery’, ‘broaden’ and ‘stretch’ – as did Hanvey. The review was “overwhelmingly positive” and the tribunal noted that it was not clear why she was given the lowest rating.
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It found that the categories were “not clearly understood by either party”, but were fundamental to promotion. In a subsequent review in October 2017, Hanvey rated her potential as ‘great mastery’, which did not correspond to any categories.
In her April 2018 review, Hanvey assessed Sunderland’s ‘flight’ risk as being low, but this was not shared with Sunderland until the tribunal. Her performance was mutually agreed to be ‘blue’, the highest level, meaning ‘brilliant’ and ‘excelling at leading the way’.
The overall rating for this review was ‘great/mastery’. Sunderland told the tribunal that she did not know this rating meant she was not eligible for promotion.
Florence Humphreys, a HR adviser for Superdry, told the tribunal that the company considered evidence of working across multiple categories; leadership; and performance review scores; as criteria for promotion. A candidate must have a ‘blue’ rating for performance and a ‘broaden’ or ‘stretch’ rating for potential, she said.
Sunderland told the tribunal that these criteria were applied to some employees and not others: for example, one designer had not gone through the required performance and potential ratings, while two others had not managed anyone at Superdry.
In May or June 2019, Sheri Matthews, the women’s knitwear designer, went on maternity leave. After this, Sunderland was told that she would be designing for the autumn/winter 2020 ranges of men’s and women’s knitwear and knitted accessories. At the end of June, a junior colleague, Ms Peterson, was brought in to assist with the workload, and design manager Karen Bryson became Sunderland’s line manager.
The tribunal accepted that it was “very challenging” to do two jobs with the help of only one assistant. Peterson was ill for two-and-a-half weeks at the end of July, and went on annual leave for two weeks in August: the peak time in the design schedule.
On two occasions in July, the tribunal heard Sunderland “broke down” to Hanvey about the workload, but was told that it would be “good for her”. Hanvey told the tribunal that Sunderland did not take on the entirety of Matthews’ workload, as she had other categories to work on.
He said that the “good for her” comment meant only that it would be good in terms of being able to design both men’s and women’s knitwear. However, Sunderland inferred this to mean that it would be good for her ambitions for promotion, and the tribunal found that this was reasonable to infer.
In December 2019, Sunderland was moved to the company’s new Centre of Excellence (CoE), where she designed knitwear accessories. She perceived this as a slight, as it involved designing “key fobs and beanies”. An organisational chart showed there to be a design manager; reporting to her were four lead designers, one designer (Sunderland), and one assistant designer.
The tribunal noted that “it was clear from the chart that redundancies were contemplated”. However, Graham Gordon, who led the CoE, was enthusiastic about the project, telling the tribunal that Sunderland contributed “epic” ideas. The tribunal found that this environment could have been an “excellent forum for her talents”.
Sunderland had been unaware of Gordon’s enthusiasm. The tribunal noted that the organisational chart “envisaged her being underneath roles that were then on the same level as her, albeit titled lead designer”. Sunderland was placed on furlough in 2020, returning in July.
On 22 July, she had a “tearful” meeting with Gordon to discuss her unhappiness, telling him that she felt “embarrassed and humiliated” and “demoted”. The tribunal heard that Gordon had “rather arrogantly” tried to correct her, telling her that she meant to say ‘demotivated’.
The next day, she handed in her notice, but was asked to work a three-month notice period due to lack of staff, which she found “demoralising”. She presented a grievance on 7 September, which she felt was dealt with “dismissively”.
During the grievance investigation, Bryson had described Sunderland as “scatty”. The tribunal found this “verges on a term of abuse”, and at certain times, she was put “under considerable stress” when trying to perform two job roles. It thought it improbable that Superdry would have given this responsibility to her if it thought she was “scatty”.
It found that in summer 2019, an “unreasonable workload” was placed on her. It found that the promotion and recruitment of certain individuals, who were not “on all fours” with Sunderland, “undoubtedly undermined the Claimant’s own perception of her standing within the business”. As a result, Sunderland resigned.
Employment judge David Hughes said Sunderland had been given “no clear and satisfactory explanation as to why she had not been promoted, which would have allowed her to understand what was required of her in order to gain promotion”.
The tribunal found Sunderland’s treatment was mainly because of her age, noting the ‘low flight risk’ comment: “older members of staff are likely to have a perceived lower flight risk”.
It found Superdry’s criteria for promotion were “flawed” and used “ambiguous if not positively misleading terminology”. A claim of harassment relating to age was also upheld; the tribunal noted that at one point, Sunderland became tearful, exclaiming, “who is going to employ a woman of my age?”
Sunderland was awarded £96,208.70 in compensation for unfair dismissal, direct discrimination on the grounds of age and harassment on the grounds of age.
Beverley Sunderland [no relation to the Claimant], managing director at Crossland Employment Solicitors, said HR professionals must remember that “the reasons for not making promotions have to be carefully considered and committed to writing at the time, and closely examined to ensure they are not discriminatory”.
She also noted that Sunderland claimed the low amount of £7,500 for injury to feelings, while the tribunal made it clear it would have awarded her a higher amount, given that the situation had been going on for two years. “However, as she had limited her claim in this way, it would be unfair on the respondents to increase it.”
Paul Britton, founder of Britton and Time Solicitors, said it was sad to see that a “well-known brand that exudes confidence in its consumers” treated Sunderland in this unlawful way. He also commented on the low award for compensation, adding that he thought the tribunal had not awarded the correct banding, as this award is reserved for ‘less serious cases’, and Sunderland may have grounds for a reconsideration of the discrimination award.